John Prudenti, BridgeTower Media Newswires
In this day and age, few people openly admit to harboring explicit racist or sexist beliefs, but “implicit biases,” or subconscious prejudices and partialities linger in the psyche of each and every one of us.
No one is immune, and psychologists tell us that even enlightened and open-minded people of every race, creed, ethnicity and gender are influenced by preconceptions.
It happens all the time: A white customer at a bank instinctively approaches the white teller rather than the black teller, or vice versa; a court officer wrongly assumes that the woman lawyer is the client; the thin person is greeted more cordially than the obese person at the theater; a man shies away from an exceptionally talented surgeon because she happens to be of Hispanic heritage — and is completely unaware that he is doing so.
Research shows that most Americans automatically associate positively with white people, and negatively with black people, and when shown the exact same resume will deem “Andy” more competent than “Andrea.” On the other hand, black people are just as likely to harbor preconceived attitudes as white people, and women are every bit as likely as men to carry hidden biases. A Pew Research Center study showed that similar levels of implicit racial bias were found among men and women, old and young, Republicans and Democrats, the educated and the uneducated. Even bi-racial adults are rarely race-neutral.
The fact is, we all carry this subconscious albatross, and like it or not, admit it or not, deceptive biases penetrate all of our judgments, from who we hire to who we date to who we select to fix our teeth. It affects who gets a ticket from the traffic cop and who gets a warning, and even who gets the benefit of the doubt on a close-call penalty in a football game. And the worst part is, most of us have no idea that our objectivity and rationality are being compromised by ingrained biases.
Nowhere is this pernicious and insidious form of discrimination more troubling and dangerous than when it infects the conclusions of judges, who have a professional, constitutional and moral commitment to impartiality. Is the judge unknowingly favoring or disfavoring someone because of a bias? Is an attorney of one race or gender more likely to get a break than an attorney of another race or gender? Is a defendant of one race likely to get a lower bail than a defendant of a different race? Is the child of one race more likely to end up in foster care, and the child of another race more likely to be returned to her parents’ care?
Those are questions every judge should ponder. Unfortunately, many times it is difficult to distinguish between implicit biases and alternative explanations for behavior. And that, of course, exacerbates the problem and makes it easy to rationalize behavior – the black defendant was denied bail because…, the stout woman was denied summary judgment because…, the gay man was awarded counsel fees because…And so on, ad infinitum. The fact of the matter is, we all have biases, and research shows that our implicit preferences can govern behavior.
Only by actively confronting and acknowledging our preconceived attitudes can we guard against them infecting our reasoning, and we can do through the use of internet based Implicit-Association Tests, or IATs.
These scientifically validated tests developed by cognitive psychologists measure our hidden biases by tracking how quickly we associate good and bad concepts with specific racial groups, genders, religions, etc. They are actually a lot of fun, and just take a few minutes (several tests measuring attitudes on a variety of variables are available at Project Implicit, https:// implicit.harvard.edu/implicit/takeatest.html)
I encourage everyone, especially those in the legal profession, and particularly judges, to test themselves. Only by being self-aware of our subjective preferences can we prevent them from intruding on our objectivity.
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Judge Prudenti is the Dean of the Maurice A. Deane School of Law at Hofstra University.
